Special counsel Jack Smith responded to former President Donald Trump’s attorneys’ motion to compel evidence from the prosecution by attempting to push back on allegations that the prosecution is selective and vindictive.
The former president is being prosecuted for allegedly mishandling classified documents and also not properly responding to a subpoena, as the case has been mired in millions of pages of documents and months of video shared in discovery—much of which, the defense claims, the prosecutors have still not handed over.
The prosecutors argued that the evidence sought by the defense falls beyond the scope of requirement and is only speculated to be able to “help substantiate their baseless theories of political animus and bias.”
On Jan. 16, the defense filed a motion to compel a host of materials from the prosecutors. Prosecutors responded that they weren’t in possession of some of the materials and had no obligation to hand over others. Discovery in this case is ongoing, with the prosecution recently producing a few thousand more pages of documents that the defense requested months ago.
Last week, the defense also filed four motions to dismiss the case, based on presidential immunity, unconstitutional vagueness, unlawful appointment of the special counsel, and the Presidential Records Act. They alleged vindictive and selective prosecution in court filings, arguing that prosecutors were acting on behalf of President Joe Biden, whom President Trump is opposing in this year’s presidential election.
In fact, some of the documents requested have to do with pursuing a defense based on selective and vindictive prosecution. The defense revealed in a previous court filing that emails released through the Freedom of Information Act allegedly showed that the White House coordinated with the Department of Justice on matters related to the case. They have demanded additional related material as they seek to have the case dismissed.
Prosecutors argued on Feb. 26 that the defendants have failed to provide “clear and convincing evidence” and called the defense’s arguments a “conspiracy theory.”
To clearly demonstrate that the prosecution was selective and vindictive—which would violate the due process clause and be grounds for dismissal—the defense has to show that “similarly situated individuals were not prosecuted“ and the prosecutor acted with ”genuine animus” toward the defendant.
Prosecutors argued that no one in American history has been “similarly situated” to President Trump in this case.
“There have been many government officials who have possessed classified documents after the end of their terms in office—often inadvertently, sometimes negligently, and very occasionally willfully. There have also been a very small number of cases in which former government officials who have been found in possession of classified documents have briefly resisted the government’s lawful efforts to recover them,” the brief reads.
“But there has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s.”
They argued that the former president “intentionally took possession of a vast trove of some of the nation’s most sensitive documents” and “delayed, obfuscated, and dissembled” when the National Archives and Records Administration requested the documents.
President Trump has maintained he did nothing wrong and has pleaded not guilty to 40 counts. His valet, Walt Nauta, and Mar-a-Lago property manager Carlos De Oliveira are named as co-defendants and charged with assisting allegedly obstructive conduct.
The prosecutors indicated they would further argue against the allegations of selective and vindictive prosecution in future replies to the defense attorneys’ motions to dismiss the case.
This case is one of two federal criminal cases the special counsel is prosecuting against President Trump; the other has been stalled for months after the defense filed motions to dismiss.
In early December 2023, a federal judge denied the first of four motions to dismiss, leading President Trump to take the case to an appellate court, which ultimately ruled against President Trump in early February. He appealed to the Supreme Court for a stay of proceedings as he petitioned for a review from the high court.
Prosecutors oppose the stay and have asked for a March hearing before the high court if it is inclined to take the case.
